Library policy news from the American Library Association's Washington Office.

Net neutrality protections eliminated in draft FCC order

Published November 27, 2017 by
Larra Clark

Last week, we highlighted a disturbing policy change that we had been anticipating for a while: Federal Communications Commission (FCC) Chairman Pai’s plan to roll back the net neutrality rules that require internet service providers to treat all internet traffic and services equally.

Before we dive in, now is the time to raise the volume on outcry as members of Congress return from the holiday. We have set up an email tool so you can make your voice heard in advance of the FCC’s December 14 vote. Visit our action center and contact your elected officials now.

First, the existing regulations the FCC passed in 2015 established clear, bright-line rules prohibiting harmful behavior by commercial internet service providers (ISPs)—for both mobile and fixed broadband. Chairman Pai’s draft order eliminates all those rules and only requires bare bones transparency disclosures—that is, ISPs could degrade service or block access to certain sites for libraries and their patrons but would need to tell them first.

The ALA has argued early and often for more transparency related to broadband offerings and ISP network management practices, and we are glad to see a nod to this in the draft order. But it’s not enough. When you have little or no choice of ISP (as of December 2016, nearly half of U.S. homes lack access to more than one broadband offering at the level of 25Mbps download/3Mbps upload), knowing that you may be paying more and getting less is no comfort. The original 2015 Order provided strong transparency, as well as enforceable “rules of the road” for broadband providers to make sure the internet we enjoy today will continue to flourish.

Second, the FCC’s draft order undermines the court-affirmed legal foundation for protecting the open internet by reversing the 2015 reclassification of broadband as a Title II service under the Communications Act. In doing so, it also undermines its own authority—giving it to the Federal Trade Commission (FTC). While the FCC touts this as a feature, others have noted the FTC would be more limited in its ability to protect net neutrality.

Third, in classic “black is white” doublespeak, the draft order states that “through these actions, we advance our critical work to promote broadband deployment in rural America and infrastructure investment throughout the nation, brighten the future of innovation both within networks and at their edge, and move closer to the goal of eliminating the digital divide.” If only the ISPs could charge content providers to reach consumers, the draft order argues, they would use this windfall to build broadband capacity for geographically isolated communities. And then those residents would be able to “choose” how much they would like to pay for whatever package is offered to them in this bright and innovative new world order. (Of course, consumers also likely will be paying higher prices to content providers, as well, as those costs get passed along.)

ALA has consistently argued that once the consumer—including libraries—pays for whatever broadband speed they can afford, s/he should be able to choose any and all legal content on the web. And, in a Web 2.0 world, we know that many consumers also are creators— that is the true power of the internet. The internet is not—and has never been—a broadcast medium in which increasingly consolidated power lies in the hands of a few, but a place where people create and share and launch new enterprises. It’s no wonder the small business community has been among the strongest proponents of net neutrality protections. ALA and libraries stand with all of our patrons and our neighbors who depend on net neutrality not only for equitable access but equitable collaboration and equitable distribution.

The FCC is scheduled to vote on this dangerous proposal at its meeting on December 14, and every indication suggests Chairman Pai has the three votes he needs to pass it. The independent regulatory agency received a record number of comments in the public record, including from the ALA and many library professionals, and the majority of comments favored maintaining the net neutrality protections already in place. As in past advocacy to preserve net neutrality protections, the fight ahead is more of a marathon than a sprint.

That said, Congress can play a role in at least two important ways:

First, strong disapproval from members of Congress (especially from Republicans and even more importantly from those on the committees that oversee the FCC) could persuade the FCC to pause its planned vote. We have set up an email tool so you can make your voice heard with your member of Congress in advance of the December 14 vote.

Second, if the FCC moves ahead with the vote and it passes along party lines as expected, members of Congress could use the Congressional Review Act to reject this destructive policy move. (More on this later.)

An even more unlikely third option is that Congress could develop new legislation that would codify net neutrality protections in law. In light of an already complex and heated legislative agenda, this seems improbable.

The more likely (and previously more successful) path of resistance is through the courts. We will talk more about legal challenges in a future blog.

Larra Clark

Larra Clark is the deputy director of both the Public Library Association and Washington Office’s public policy team. Larra received her bachelor's degree in interdisciplinary studies from the University of Arizona and has a M.S. in Library and Information Science from the University of Illinois, Urbana-Champaign.

What about states setting up laws that mandate any ISPs wishing to conduct business within their borders must follow the principles of net neutrality? Is that unlikely or just outside the purview of the ALA’s WO?

December 15, 2017

Emily Wagner

Thanks for your comment, Jacob. Yes, we are tracking on these state and local efforts and talk a little bit about it in a new blog today: http://www.districtdispatch.org/2017/12/fcc-vote-continuing-fight-net-neutrality/. It is unclear at the moment whether any state-level legislation will be able to withstand legal scrutiny in the face of the FCC pre-emption in the recently approved order, but it is still early days. We will continue coordinating with other net neutrality allies to monitor all efforts to support the open internet and keep members up-to-date about which proposal are moving and comport with the strong protections and the principles we have supported.